Is Being Stupid on YouTube Now a Crime? Evan Emory Pleas “No Contest”

Evan Emory may soon hold the distinction of being America’s first “YouTube criminal.” Yesterday in a Michigan court in Muskegon county he pleaded “no contest” to a reduced felony charge of “unlawful posting of an internet message with aggravating circumstances” – a plea deal to the child pornography charges that the district prosecutor and parents wanted. The case has sparked a national debate on the generational, cultural and technology gap in this country that YouTube has exposed. Do we now need new laws? Or perhaps, a new education around YouTube and social media, along with understanding the legal consequences?

Local media outlets The Muskegon Chronicle and WZZM13 reported that the plea deal came after nearly two weeks of negotiations between his lawyers and the Muskegon County Prosecutor. According to terms of the plea deal, Emory will spend 60 days in the Muskegon County Jail, be placed on probation for two years, and must complete 200 hours of community service. Emory’s attorney,Terry J. Nolan, said the charge is a felony, but he would be allowed to plead to a misdemeanor later if he successfully completes probation.

The consequences would have been extremely risky and serious for Emory if the case had gone to trial. A judge or jury could have sentenced Emory to as much as 20 years in prison, and being listed as a registered sex offender for 25 years. Even with a mountain of evidence behind him and the support of his peers and the legal community, the risk of getting convicted on the charges and waiting for years on appeal, plus mounting legal fees, proved to be too much.

Emory remains free on $5,000 bond pending an April 12 sentencing.

A Quick Recap of the Evan Emory “YouTube Criminal” Case

Evan Emory, a 21-year old aspiring musician and comedian from the Ravenna area of Michigan, was originally charged in January with creating and publishing a sexually-themed YouTube video he shot in a classroom that featured local first-grade students and vulgar lyrics. The joke was supposed to be that the video was edited to make it appear that the school children were reacting to the vulgar song version rather than the G-rated version, which he performed. He acknowledged using bad judgment, saying he had intended it as humor; and apologized to the parents and the school for being deceptive.

Emory’s case gained national media attention on the disparity between the justifiably harsh laws for child pornography; and the gross exaggeration of applying those laws to the type of activity that Evan Emory did in his YouTube video, which is becoming more commonplace online. Part of the problem is that many of the younger generation of YouTube users have grown up much of their formative years in a “virtual culture,” where popular shows on television and the Web are featuring increasingly edgy and inappropriate things in video; and while they show or do no actual physical harm to anyone, there is a serious backlash in some communities like the one Emory resides in, where many people not immersed in the virtual culture either can’t or choose not to distinguish between YouTube videos and physical reality.

Should Evan Emory Have Pleaded?

Emory had many things going his way in this case:

A grossly exaggerated charge – His video depicts no sexual acts, nor where any children actually present for the lewd song, or were they even ever subjected to watch the final video. So to treat it as the equivalent of child pornography is a major overreaction.

A bad law – Section 750.411s of the Michigan Penal Code Act 328 of 1931 (which is the act that Emory was charged under) is a seriously flawed piece of legislation. The expert opinions I received from law professor and a former child pornography state prosecutor (published here earlier at ReelSEO) and with no connection to the case, both determined independently that the law is vague and overly broad. In the hands of a zealous and unscrupulous prosecutor, it can be used to justify suppression of almost any speech.

Support of his peers – many of Emory’s fellow students were already coming out in support of him, and a “Free Evan Emory” Community Facebook Page was created and has garnered nearly 4,000 supporters – from both locals and internationally.

Higher legal jurisdiction on their side – the U.S. Supreme Court already ruled that what Evan did in no way constituted child pornography or any actual sexual abuse of a child. “We had first amendment issues, and we had the legislative history on our side to fight this legal statue,” said Nolan.

Mass media attention and support – Emory’s case garnered national media attention and support from major news outlets, calling the charges a gross lack of common sense and should be dropped. The Boston Globe had this fitting comment:

It’s understandable that parents feel that the children involved were exploited, and it’s plainly wrong for a musician to lie his way into an elementary school and juxtapose a sexual song against images of young children. The YouTube era has certainly multiplied the opportunities for such a person to create videos that are deeply unsettling, but not all unsettling material violates the law.”

Yet with all of these things in his and his attorney’s favor, Emory decided that with even the remote possibility of a conviction, the risks were way great, even with being likely overturned on appeal.

Real Community Pressure Over YouTube’s “Virtual” Community

Emory saw the plea deal as a way of making amends with his community and showing he was really sorry for what he did; and for helping to assuage the genuine grief that some parents, including his own parents, have gone through. He also had some other extremely important things to consider with making his decision:

The trial location – a local jury in a conservative county watching Evan’s video, without an understanding or experience with YouTube culture and social media, or an understanding of free speech and existing law, could have likely issued a verdict of “guilty” out of emotion and vengeance, rather than an appropriate sense of justice.

Waiting on appeal – if he had been convicted in circuit court, Emory could have had to wait in prison for years while his case was on appeal; and with the conviction of child pornography.

Burdening legal costs – granted, an outside organization could have helped with pro bono legal counsel, but Nolan expressed to me that there would have been too much interference with what he thought was in the best interest of his client, rather than having a drawn-out trial.

Prison rape – the prospect of prison rape is pretty horrifying, and is a reasonable fear with the charges involved, since he would be placed in confinement with other convicted sex offenders. (Funny how it seems that most of the parents involved don’t seem to care, or that’s what they might actually seem to want happen to Emory.)

“There were terrific issues that could have gone all the way to the Supreme Court, I think; because of the newness of the Internet; plus there are a bunch of new legal issues that are popping up all the time.” Said Nolan, in an interview with local news station WZZM13. “This would have been a great case to take all the way. But I’m not here to champion any cause. I’m here to represent a 21-year old kid.”

Emory isn’t technically a kid. He’s an adult, and a young adult for sure. But wouldn’t most anyone in his situation be terrified of being convicted as a pedophile? While on the verge of pleading no contest to the reduced felony charge, Emory said that spending 60 days in jail – which he described earlier that just spending one day in jail was one of the scariest experiences of his life – doesn’t scare him as much as the thought of “half the world thinking I’m a pedophile.”

I’m sure there are free speech advocate who will say that Emory should have fought this tooth-and-nail. I say remember this: You’re 21 years old. You could be in jail for at least several years while you have one of the worst charges as a conviction, which puts you in great dangers with the rest of the prison populace. You don’t want to put your family and loved ones through a drawn out ordeal. And, you’re flat broke from what you’ve had to spend to defend yourself. The downside of being part of a cause bigger than yourself, is that it most often doesn’t pay for itself.

Sympathy for Muskegon County’s “YouTube Devil”

I do have sympathy for what Evan has been through, and I understand and respect his decision. Evan already lost his job, he was arrested and spent a night in jail, and continues to experience the ongoing derision of a good part of a staunchly conservative local community. He is dealing with an ongoing major overreaction by a lot of parents, who were justifiably concerned at first, but have personified a vengeful mob. He has had to face an opportunistic local prosecutor who is more than happy to appease the desire for vengeance of those same parents and conservative populace, in hopes of winning an easy re-election. And he has an adversary with the school superintendent, who has basically thrown a former student of his own school in Evan Emory under the bus, in the hopes of creating diversion from a monumental oversight in school policy and potential civil lawsuits.

The parents had a right to be upset and angry. But they’re more than angry; they want blood. They want Emory to server a lot longer jail time than just 60 days. But their willful ignorance in accepting the actual circumstances of what really happened shouldn’t have led to this. A responsible school superintendent and DA’s office wouldn’t have let it go this far.

Despite the charges and the plea deal, Evan Emory is not a criminal. He was stupid but not malicious, and there is no crime for “sick comedy.” (Funny how so much “sick comedy” is derided by mainstream media and conservative parts of the country, yet seem to be so popular with people when they don’t think anyone knows they’re watching it…)

The Washington Post did an editorial that summarized the community problem with the temptation that YouTube provides some aspiring performers and producers for cheap fame and maybe some fortune:

The steps are usually simple: Boy makes inappropriate video, video goes viral, boy becomes able to sell merchandise with his face on it without people thinking he’s some sort of weirdo. (This, to me, is a good working definition of fame in our era.)… The quest for fame, online or otherwise, usually requires some form of outrageous behavior.”

The younger generation has grown up with the Internet around for all or most of their existence, and with user-generated video ubiquitous in their lives. They have already seen how others are rewarded with attention for their own outrageous videos. Some of them like Tosh.0 even getting an entire show on cable TV’s “Comedy Channel,” which Emory said was one of his inspirations. (Ironically, it was reported the Tosh.0 show had Emory’s own YouTube video as one of it’s viewer favorites, before the charges broke. Even more ironically, Tosh.0 last week had a show segment titled “Child Pornography.” I’m not kidding.)

Emory is like most young people in our culture today – he wanted to make a viral video. He wanted to get discovered and get some fame. Viral videos are an incentive to get famous quickly, and the way a lot of YouTube performers think the fastest way to do that is to do something outrageous.

The question for these YouTube performers looking for quick fame isn’t whether to be edgy or not; it’s more a question of, how far can you push it and get away with it? Neil Perry of PopTent, a social network dedicated to crowdsourcing video, says “Most agree that some of the key elements to helping a video go viral are: hot chicks or hunky dudes; sexual innuendo; shock and surprise; violence; partial nudity; the unexpected; and minimal branding.”

For a lot of people (not just young people) who want to “get discovered,” the key is putting out an edgy video that some will find outrageous, and others will find hilarious or very intriguing in some way – and both the negative and positive social currents will create a big impact for your own visibility. That’s been proven the case time and time again. But sometimes like the case of Evan Emory, when the joke goes too far and not the way you intended, you can’t just take it back. You find that you can’t control any overreactions some people have, and those overreactions can be especially damaging if they come from the community you happen to physically live in, where they can find you and take real punitive action against you.

Did The School Deceive the Parents About Video Recordings?

Ravenna School's "Emergency Information Record" with the entire waiver language for video recordings of their children (highlighted by the Ravenna Schools' Superintendent' office)

This has been the huge oversight that has been missed by both the parents and the media. The school’s only form they give to parents for signing-off on having their kids being video recorded is on a single “Emergency Information Record,” that the school gives out at the beginning of the school year. Right at the very bottom of the form is a sole sentence that reads:

“I grant permission for the school, in whole or in part, to use photographs, written extractions, video, and voice recordings of my student(s) for the purpose of marketing and publications unless otherwise notified in writing.”

And on the back of the same form, is one paragraph with the headline, “STUDENT PICTURES FOR PUBLICATION,” which reads as follows:

“During the course of the school year, occasions may arise when photographs of students will be taken for newspapers, school publications, and other media. Usually the student is identified in these pictures. Parents are to provide written indication of any objections to their child’s picture being published in this fashion at the beginning of the school year.

I had intellectual property attorney and friend-of-ReelSEO, Mark J. Rosenberg, who’s a legal expert in right of publicity and releases, review this same document. Here’s what he had to say:

“This sentence as used in the context of this document, is very problematic. It’s an emergency information record that has to do with the children’s contact information, if something happens to a child. And it has the parent’s information, emergency information, the doctor’s information. Buried beneath it all, beneath the statement regarding payment of emergency expenses, is this release.

“And such an important part of a contract buried like that, when you have parents who are filling this out, and have multiple kids who have been in this situation, you just blindly fill these things out. You are not reading every line, you’re just filling in the blanks. You don’t even see this. And as a result this is a serious issue of whether this clause is even enforceable… it’s worded so poorly and so vague.

“Puttinga right of publicity release in the context of an emergency information record, is somewhat deceptive. And I know this school was not trying to be deceptive and someone told them this was the easiest place to do it, but it gets overlooked. And in those situations where language like this is buried in something else, there is good argument that it is not even enforceable.”

You can understand now why the Ravenna Schools District Attorney has been silent about this. The school allowed for an unauthorized and unsupervised video recording that was made available on a public URL at the largest video website anywhere, with language in their “permission form” which under legal review may not actually be legally binding. If I was one of those concerned parents who’s child was featured in the YouTube video, I would be seeking legal counsel and seriously considering filing my own lawsuit against the school. I’m no attorney, but I think it’s amazing that the parents can’t see that the school may actually be the real entity culpable according to the law. The reason they aren’t seeing that, I think, is because two local government entities and mutual colleagues – Ravenna Schools and the prosecutor’s office – teamed up and successfully created a diversion for the parents, who are still clouded by their emotions to see the obvious remedy.

What’s the Real “Teachable Moment” Here?

Well, I’m no school superintendent or a district prosecutor, but I think the Evan Emory case has several teachable moments:

Anytime you want to do something “edgy” and put it out on YouTube, really think through what the consequences for you may be. If you’re doing it with children, ask how a parent would feel if they saw their child on an “edgy” video you put up on YouTube without their permission. If you can’t get permission, you’re safest not doing the video.

If you can’t defend in public what videos you publish on YouTube, or if you can’t even express remorse and apologize (like Emory already did), then you’re not “edgy” – you’re just being opportunistic and indifferent to others’ well being.

If we find ourselves continuing to appeal to irrational people and a local jurisdiction that doesn’t want to or care to follow existing laws, it’s only going to lead to more irrational behavior, more bad laws, and more zealous and unscrupulous prosecutions.

Evan Emory’s behavior and naivety about the repercussions isn’t excusable nor tolerable, but it is understandable; and dare I say it, not uncommon for people his age. There are many aspiring young (or just new) performers who have grown up with and followed popular shows on TV and the Web, and have seen how often it can be well-rewarding to be edgy and outrageous – which seems to make up for a lot of viral videos on YouTube. I’ve seen the YouTube videos of his musical and comedy performances, and I think he is a talented young man. I believe he was not being malicious and certainly not abusive in any way to children.

Having already expressed great remorse and experiencing retribution (such as the loss of his job, already spending time in jail, and his parents’ heartbreak), Emory demonstrated an understanding of the real consequences and real people who are affected by what you publish – not just in your own community, but the people who are closest to you. Emory’s teachable moment would have be to share these real-life experiences as part of his volunteer community service, and helping educating other like-minded individuals on YouTube responsibilities, along with free-speech rights.

What do you think?

Michigan’s Muskegon County would now have us believe that being stupid on YouTube should be treated as a real crime. But clearly this is a case where any rational, unbiased person without any outside agenda can see that the charge of criminal sexual abuse to minors is just flat out crazy. Do we need to create any new laws for YouTube activities like this, which from what I’m seeing are becoming more commonplace? Or do people who aren’t a part of the YouTube and social media culture need to be willing to be educated about it? Or, do we need to do both?

I hope the people in Evan Emory’s community can try to make this a teachable moment for themselves, and be able to have an open and honest dialogue about what’s becoming a “YouTube generation gap” – those growing up in a YouTube culture and having their sense of what’s acceptable skewed by it, versus those who choose not to be involved or understand it, and the people who participate in it. We’re now witnessing what ignorance of each other’s generational values can negatively cause for a community.

I hope the people in his own community will eventually see Emory’s contributions outweigh this big mistake, and actually practice the value of forgiveness I hear small-town Christian communities like his are supposed to be well-known for. I hope they’ll even be willing to learn something about the “YouTube generation” and understand why they do these things, and have open and honest discussions with each other about where they’re coming from. Hopefully next time the older pre-YouTube generation won’t be so rash to equate to equate their own younger community members as child pornographers and want to have them punished as such.

I believe that until local communities can have honest and rational discussions and address the generational gap (which YouTube has shown to be a wide gap), and until we can address how pop culture is sending mixed messages to the younger generation on freedom and responsibility with video, were going to wind up debating the actions of more “Evan Emory’s” – popping up in a so-called conservative community near you.

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Grant Crowell is a veteran “social video stylist” working in video marketing since 2005. He has worked in the online marketing industry since 1996 providing digital strategies and development to enterprises and entrepreneurs of all sizes, including Video SEO, YouTube marketing, video UX best practices, performance testing, legal issues and ethics. Contact Grant @ http://grantcrowell.com/.